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January 14, 2005 - The St. Paul Pioneer Press (MN)

Column: Court Deepens Sentencing Doubts

By Ruben Rosario, Pioneer Press columnist

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Blakely News Archive

A riddle wrapped in a mystery inside an enigma might come close to describing the uncertain aftermath of another controversial U.S. Supreme Court ruling this week that governs how judges will now sentence federal criminal defendants.

"I describe the latest ruling as making chaos out of confusion," said Barbara Tombs, executive director of Minnesota's Sentencing Guidelines Commission and someone frankly relieved that the latest decision won't have that much of a significant effect -- at least so far -- on state criminal cases.

The federal picture, however, is another story. And a political fight in Washington, D.C., could result.

In a 5-to-4 ruling Wednesday, the nation's highest court concluded that federal judges must now use the two-decade old federal sentencing guidelines system as an advisory tool rather than a mandatory formula for imposing prison terms.

The guidelines were created in response to a groundswell of protests and criticism that judges had too much discretion and often imposed vastly disparate sentences across the country and even in the same courthouse for similar offenses.

Under the system, defendants are assessed points based on the severity of their offense and criminal history. The points translate to a recommended minimum and maximum range of prison length.

But some critics now contend the pendulum of discretion has swung too far the other way. They argue the guidelines and an increase in mandatory minimum laws, particularly those governing drug offenses, handed prosecutors more say than judges in determining punishment or prison lengths.

A ruling in a case last summer -- Blakely v. Washington -- concluded that a jury, not a judge, should determine whether to hand down a longer term beyond the maximum recommended under the guidelines.

In contrast, this week's ruling, United States v. Booker, appears to give federal judges more leeway in determining a defendant's sentencing.

The court decided judges should consult the guidelines in determining sentences -- but only on an advisory basis. Appeals courts must ensure sentences are reasonable.

"Ours, of course, is not the last word. The ball now lies in Congress' court," Justice Stephen Breyer wrote in one part of the ruling. The decision did not spell out how judges should deal with defendants or what options Congress has.

James Rosenbaum, the chief federal judge in Minnesota and a long-time critic of mandatory minimum drug laws and the restrictiveness of the guidelines structure, declined to go into details about his reaction to the court's ruling.

"All I can say at this time is that it has put the word 'guideline' back into the guidelines," Rosenbaum said.

Tombs and Richard Frase, a professor of criminal law at the University of Minnesota, both predict a potentially intense political fight in Congress along party lines that could either support or significantly water down the ruling.

"If Congress doesn't like the voluntary guidelines, they can come up with any other system they want," said Frase, who added there is a current legislative amendment that seeks to curb or rein in "liberal, activist judges."

"I didn't think they could make a mess messier, but they probably did," Frase said.

Like most states, Minnesota adopted and made constitutional a similar sentencing guideline structure that Tombs said is far more flexible than the federal one.

She noted that procedural changes -- having juries officially decide a longer prison term and depart from state guidelines -- are being proposed to account for the Blakely decision.

The impact of such a change probably would affect only a fraction of state cases.

A State Sentencing Guidelines Commission report released in October estimated that 358 of 14,492 felony cases sentenced in 2003 could fall under the proposed changes.

A majority of such cases usually are settled in plea bargains that are not directly affected by guidelines.

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